33 A.D.3d 609
N.Y. App. Div.
2006

SNAPPER REALTY, LLC, Respondent, v DUANE READE et al., Appellants, and SUNOCO, INC. (R & M), Respondent.

Appellate Division of the Supreme Court of New York, Second Department

22 AD3d 609 | 821 NYS2d 472

In an action, inter alia, pursuant to RPAPL article 15 for a judgment declaring that the plaintiff has an easement over the property of the defendant-counterclaim-plaintiff Dorothy Basson Martin Trust, the defendants-counterclaim-plaintiffs appeal from stated portions of an order and judgment (one paper) of the Supreme Court, Queens County (Dollard, J.), entered March 7, 2005, which, upon a decision of the same court dated November 23, 2004, inter alia, denied those branches of their motion which were for summary judgment on their second counterclaim for compensatory and punitive damages for trespass, for injunctive relief, and for an award of costs and the imposition of a sanction upon the plaintiff pursuant to 22 NYCRR 130-1.1, and dismissed the second counterclaim pursuant to CPLR 3212 (b).

Ordered that the order and judgment is affirmed insofar as appealed from, with costs.

The Supreme Court properly dismissed the defendants’ counterclaim for injunctive relief and to recover damages for trespass. The defendants failed to raise a triable issue of fact in response to the plaintiff‘s prima facie showing that neither it nor its employees entered upon or caused anyone to enter upon the defendants’ property at any time (see Golonka v Plaza at Latham, 270 AD2d 667, 669 [2000]; Kaplan v Incorporated Vil. of Lynbrook, 12 AD3d 410, 412 [2004]; see also Ward v City of New York, 15 AD3d 392, 393 [2005]).

The Supreme Court providently exercised its discretion in denying those branches of the defendants’ motion which were for an award of costs and the imposition of a sanction against the plaintiff (see 22 NYCRR 130-1.1; Chang v SDI Intl. Inc., 15 AD3d 520, 521 [2005]).

The parties’ remaining contentions are without merit.

Luciano, J.P., Rivera, Lifson and Covello, JJ., concur.